U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

IN THE MATTER OF:

FEDERAL EXPRESS CORPORATION Respondent.

The Honorable Richard C. Goodwin ) ) ) FAA Case No. 2014SW700042 ) (Civil Penalty Action) ) ) ) FDMS no. 2014-0864 ) 

## APR 24 20!5 

## HEARING DOCI<ET

RESPONDENT'S RESPONSE TO COMPLAINANT'S FIRST SET OF REQUEST FOR ADMISSIONS, INTERROGATORIES, AND REQUEST FOR PRODUCTION OF DOCUMENTS Respondent, Federal Express Corporation d/b/a FedEx Express ("Respondenf' or "FedEx Express"), by counsel andpursuantto 14 CFR 

### § 13.220, herebyresponds to the Complainant's First Set ofRequest for Admissions, Interrogatories, and Production ofDocuments: PRELIMINARY STATEMENT Respondent's investigationofthefacts relatedto this case is ongoing, andithas notyetfully completed its discovery 

### in this action nor completed its trial preparation. All of the responses contained herein are based onlyupon suchinformation and documents as are presently available to and specificallyknownto. Respondent atthepresenttime. Respondent statesthatfurther discovery, independent investigation, legal research and analysis may supply additionalfacts ordocuments, add meaning to the known facts or documents, and/or establish entirely new factual and legal conclusions, all ofwhichmay leadto substantial additions to, changes in and/or variations from the information .and documents herein set forth.The following responses are given without prejudice to Respondent's right to produce any subsequently discovered fact(s) or document(s) that it may later recall, learn about or locate. Accordingly, Respondent reserves the right (but specifically denies any obligation) to change any and 

### all responses herein as additional facts or documents are ascertained, analyses are made, legal research is completed, and contentions are made. GENERAL OBJECTIONS 1. FedEx Office and Print Services, Inc. ("FedEx Office") is a distinct operating company from Federal Express Corporation ("FedExExpress"). While FedEx Office accepts nonhazardous shipments onbehalfofFedExExpress and other carriers, FedExExpress cannot respond
on behalfofFedEx Office. Without waiving any rights or objections associated therewith, FedEx Express believes the following responses that relate to Fec!Ex Office are accurate based on information and belief. 2. Respondent's fact investigationis ongoing, and it hasnotyet completedits discovery, claims analysis and trial preparation. Facts, documents and things nowknown maybe imperfectly understood and, accordingly, suchfacts, documents andthings maynotbeincludedinthefollowing responses. Respondent reserves the right to refer to, conduct discovery with reference to, or offer into evidence at thetime oftrial any and all facts, documents and things notwithstanding the initial responses herein. 3. Respondent objects to Complainant's Interrogatories, Request for Admissions and Production ofDocuments insofar as they seekthe disclosure ofinformation that is protectedbythe attorney-clientprivilege, the workproduct doctrine or any other applicableprivilege. To the extent thatRespondentinadvertently discloses informationthatmaybeprotectedfrom discoverylllldertheattorney-client privilege, the work product doctrine or any other applicable privilege, such inadvertent disclosure does not constitute a waiver ofany such privilege. 3. Theresponses setforth beloware providedwithout in any manner waiving: (1) the right to object to the use ofany response for anypurpose, inthis action or any other actions, onthe grounds ofprivilege, relevance, or any other appropriate grounds; (2) the right to object to any request involving or related to the subject matter ofthe responses herein; or (3) the right to revise, correct, supplement or clarifY any of the responses provided below, at any time. Respondent specifically reserves the right to supplement its responses. 4. Subject to and without waiving these general objections, and subject to and without waiving the specific objections below, Respondent's responses are as follows to Complainant's Interrogatories, Request for Admissions and Production ofDocuments in accordance with Respondent's understanding ofthe fair meaning ofthose discovery requests:
RESPONDENT'S RESPONSE TO COMPLAINANT'S FIRST SET OF REQUESTS FORADMISSION REQUESTNO. 1: OnJanuary 10, 2014 the customer service agent at the FedEx Office in Austin, Texas failed to inspect the shipment assigned airway bill tracking number 797609866023. ANSWER: Respondent incorporates each of its General Objections above. Upon information and belief, FedEx Office does not accept any hazardous material, as defined in in 49 C.F.R 171, etseq, onbehalfofFedExExpress. Therefore Respondent objects to this request inthat it seeks toimplyan obligation onFedEx Officeto inspecthazardous material shipments pursuantto 49 C.F.R 175.30. Further, nothing alleged in Complainant's complaint would give rise to an additional duty on behalfofFedEx Office to inspect the shipment. Respondent asserts that at no time, did employees ofRespondent orFedEx Officeknowingly, as definedin49 U.S.C. 5123 (a) (1),accept animproperlypreparedhazardous material shipment. Respondent admits thatFedEx Office acceptedthe shipmentwith a shipping label without indicationthatitcontainedhazardous materials andthat didnot containthe required shipper's declaration orrequiredhazardous materialsmarkings
or labels, at a FedEx Office location with signage stating that dangerous goods are not accepted at FedEx Office. 

### REQUEST NO.2: On January 20,2014 the customer service agent atthe FedEx Office in Austin, Texas failed to questionthe shipper concerningthe contents of the shipment assigned airway bill tracking number 797609866023. 

### ANSWER: Respondent incorporates each of its General Objections above. Upon information and belief, Denied. 

### REQUEST NO.3: On January 10, 2014 the customer service agent atthe FedEx Office in 

### ' Austin, Texas accepted a shipmentwithhazardous material indicators assigned airwaybill tracking number 797609866023. 

### ANSWER: Respondent incorporates each of its General Objections above. Upon information and belief, Respondent admits that the shipment in question was accepted by FedEx Office with a shippinglabel without indicationthatitcontainedhazardous materials and that didnot contain the required shipper's declaration or required hazardous materials markings or labels, at a FedEx Office locationwith signage stating that dangerous goods are not accepted atFedEx Office, but denies that the shipment had hazardous material indicators. 

### REQUEST NO.4: The shipment assigned ain\Tay bill trackingnumber 797609866023 was packaged inside ofa non-specification fiberboard box. 

### ·ANSWER: Admitted.REQUEST NO. 5: Marked on the exterior of one side of the fiberboard box assigned airway bill tracking mnnber 797609866023 was the word "PAINT". ANSWER: Admitted. REQUEST NO. 6: Orientation Arrows were printed on the exterior of one side ofthe fiberboard box assigned airway bill tracking number 797609866023. ANSWER: Respondent admits that the shipment contained orientation arrows, but denies that the orientation arrows are hazardous materials orientation arrows prescribed by 49 CPR 172.312. REQUEST NO. 7: Handwritten onthe exterior ofone side ofthe fiberboard box assigned airwaybill trackingnumber 797609866023 was the language TFD-654NFreedomFishingBlueA2888. ANSWER: Admitted. REQUEST NO.8: Printed onthe exterior ofone side ofthefiberboard box assigned airway bill tracking number 797609866023 was the language "THIS SIDE UP". ANSWER: Admitted, assumingby "exterior ofone side" Complainantmeansthetop of the box. REQUEST NO.9: On January 10, 2014 the customer service agent at the FedEx Office in Austin, Texas accepted the shipment assigned airway bill tracking number 797609866023. ANSWER: Respondent incorporates each of its General Objections above. Upon information and belief, Respondent admits thatFedEx Office acceptedthe shipment with a shipping label without indication that it contained hazardous materials and that did not contain the required shipper's declaration orrequiredhazardous materials markings or labels, at a FedEx Officelocation with signage stating that dangerous goods are not accepted at FedEx Office.

### REQUESTNO.lO: OnJanuary 10, 2014the customer service agent attheFedEx Office in Austin, Texas allowed the shipment assigned airway bill tracking number 797609866023 into air
commerce. ANSWER: Respondent incorporates each of its General Objections above. Upon information and belief, Denied, the shipment in question never traveled on an aircraft and was therefore never in air commerce. REQUEST NO. 11: The shipment assigned airway bill tracking number 797609866023 leaked. ANSWER: Admitted. REQUEST NO. 12: The shipment assigned airway bill tracking number 797609866023 leaked during the sorting operation at the Federal Express Regional Sort Center located at Fort Worth Alliance Municipal Airport in Fort Worth, Texas. ANSWER: Admitted.

RESPONDENT'S RESPONSE TO COMPLAINANT'S FIRST SET OF INTERROGATORIES

.

INTERROGATORYNO. 1: 

### Identifythe name, address, telephonenumber, andpositionof each person answering or assisting in answering these interrogatories. RESPONSE: Greg Stofko Senior Attorney 1700 Pennsylvania Ave., NW Suite 950 Washington, DC 20006 202-393-9285Allan H. Horowitz Senior Cmmsel McKenna, Long & Aldridge 1900 K St., NW Washington, DC 20006 202-496-7500 David Littlejohn Dangerous Goods Advisor Federal Express Corporation 3670 Hacks Cross Road Memphis, TN 38125 (901) 434-9567 Robert Teutsch Managing Director, Regulatory and Commercial Transactions Three Galleria Tower 13155 Noel Road, Suite 1600 Dallas, TX 75240 214-550-7587



### INTERROGATORYNO.2: IdentifYbyname, address andtelephone numbers allpersons who have personal knowledge ofyour affirmative defenses alleged in your Answer. 

### RESPONSE: Greg Stofko Senior Attorney 1700 Pennsylvania Ave., NW Suite 950 Washington, DC 20006 202-393-9285 Allan H. Horowitz Senior Counsel McKenna, Long & Aldridge 1900 K St., NW Washington, DC 20006 202-496-7500 David Littlejohn Dangerous Goods AdvisorFederal Express Corporation 3670 Hacks Cross Road Memphis, TN 38125 901-434-9567 Pat Oppenheimer Senior Manager, Corporate Safety Federal Express Corporation 3670 Hacks Cross Road Memphis, TN 38125 901-434-9563 Thomas Lopez Managing Director, Corporate Safety Federal Express Corporation 3670 Hacks Cross Road Memphis, TN 38125 901-434-9587 Respondent further states that its fact investigation and trial preparation are ongoing, and discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or supplement this response ifit identifies any additional individual with personal knowledge of Respondent's affmnative defenses.



### INTERROGATORYNO.3: Identify bytitle, date, author, present custodian and content all documents obtained by you or 

### in yom possession relating to the assertions 

### in Federal Express Corporation's Answer, Including affirmative defenses. 

### RESPONSE: Respondent incorporates each of its General Objections set forth above. Respondent objects to this request onthe grounds that it seeks information that is neither relevant
nor reasonably calculated to lead to the discovery ofrelevant evidence, it is overly broad, unduly burdensome, not sufficiently limited inrelevanttype, time or geographic scope, andnotreasonably calculatedto leadto the discovery ofadmissible evidence. Respondent further objectsto this requestto the extent that it seeks the disclosure of information that is protected by the attorney-client privilege and/or the work product doctrine. Subject to and without waiving these objections, Respondent identifies as follows the responsive, non-privileged documents in its possession, custody, or control to the extent such documents exist and can be located in the exercise of reasonable diligence and without undue burden: All documents below are inpossession ofRespondent's Counsel.

• Releasable portion ofFAA Investigative File, including but not limited to:
o FAA Letter ofInvestigation dated January 17,2014

o FedEx Express Response to Letter ofInvestigation, dated February 6, 2014, including attachment

o Statement ofF AA Special Agent Anthony Jimenez

o Package photographs, dated January 15,2014

o Copy ofthe shipper's shipping label, dated January 10,2014

• 2014FedEx Express Service Guide, includingFedExExpress Terms and Conditions

• FAA Order 2150.3B Compliance and Enforcement Program

• E-mail datedFebruary 10, 2014 betweenHeidi McAuliffe of theAmericanCoatings Association and David Littlejohn ofFedEx regarding regulated vs. non-regulated paint

• E-mail exchange dated September 24, 2014 between Kim Shannon ofAkzoNobel Coatings and DavidLittlejohn ofFedExregarding regulatedvs. non-regulatedpaint

• FedEx Express Informal Conference PresentationRespondent further states that its fact investigation and trial preparation are ongoing, and discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or supplement this response if it identifies any additional documents relating to Federal Express Corporation'§ Answer and Affirmative Defenses.



### INTERROGATORYNO.4: IdentifY the name, address, telephone number, and specialty ofeachpersonyouexpectto call as an expert witness at trial, andfor each expert identified, statethe subjectmatter ofhis or hertestimony andthesubstance ofthefacts and opinions to whichthe expert ' is expected to testifY. 

### RESPONSE: Respondent has not yet identified any expert witness but will amend and/or supplement this response ifit identifies any expert witness.



### INTERROGATORY NO.5: Explain the factual basis for each denial inFederal Express Corporation's Answer to Complainant's complaint. 

### RESPONSE: FedEx Express denies thatany ofits employees knowingly, as defined in49 U.S.C. 5123 (a) (1), accepted the improperlypreparedhazardous material shipmentinquestion. The shipment in question was tendered without the required hazardous material markings, labels or documentation. The shipmentwas notinUN specificationpackaging, did notinclude aUN number, did not have any ofthe required hazard labels, and did not include a shipper's declaration. The shipmentin question, as it appearedto FedExExpress employees, was completely consistentwitha non-hazardous shipment. The word "paint" printed on the side of the box as referred to in Complainant's complaint, Section I paragraph 3, is not a word that is synonymous withhazardous material and could refer to a variety ofpaints that are not regulated by the Hazardous MaterialsRegulations. In addition, the orientation arrows referred to in Complainant's Complaint, Section I paragraph 3, are notinconformance withthe hazardous material regulations, specifically section49 C.F.R. 172.312. Further, the shipment inquestion was dropped offat

**aF~dEx** Office facility, which perpolicy and FedEx Express terms and conditions does not accept hazardous materials onbehalfof FedExExpress. Additionally, the FedEx Office facility had signageprominentlypostedto indicate that it does not accept dangerous goods. Finally, the shipper utilized automatedFedEx software to generatetheir shipping label and affirmedthatthis shipment did not containhazardous materials, an affirmationthatFedExExpress is entitledtorelyupon. Had the shipperproperlyindicatedthattheir shipment contained hazardous materials during the preparation oftheir shipping label, the label would have indicated that the shipment contained a regulated commodity. Therefore, there is no dutyfor a reasonablepersonactinginthese circumstances to further inquire into a shipmentthat, by its appearance and given allthe relevant facts and circumstances, is consistentwith a non-hazardous shipment. INTERROGATORYNO.6: Identifythenames, addresses andphonenumbers ofeach and every FedEx employee involvedinthe acceptance ofthe shipment onJanuary 10, 2014 atthe FedEx Office inAustin, Texas. RESPONSE: Respondent incorporates each of its General Objections above. Upon

. information and beliefthe employees atFedEx Office who were involved in acceptingthe shipment

are: Taler Kaufinan Center Manager Austin TX IH 35 at Slaughter 9500 S Interstate 35 Suite L550 Austin, TX 78748 512-292-1262Darell Moore Center Consultant Killeen TXUS 190 W 2309 E Central Texas Expy Suite 300 Killeen, TX 76543 254-690-5584 The Fec!Ex Express courier who retrieved the shipment from Fec!Ex Office was: Steven 

### R. Worsham Courier 5811 Techni Center Dr. Austin, TX 78721 281-876-4131

Respondent further states that its fact investigation and trial preparation are ongoing, and discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or
I supplement this response ifit identifies any additional persons involved. in the acceptance ofthe shipment.



### INTERROGATORY NO.7: IdentifY the names, address and phone numbers ofeach and every Fec!Ex employee who failed to inspectthe shipment on January 10, 2014 at the Fec!E!' Office inAustin, Texas. 

### RESPONSE: Respondent incorporates each of its General Objections above. Upon information and belief, Fec!Ex Office does not accept any hazardous material, as defined in in 49 C.F.R 171, et seq, on behalfofFedExExpress. Therefore Respondent objects to this request inthat it seeks to imply an obligation onFec!Ex Office to inspecthazardous material shipmentspursuantto 49 C.F.R 175.30. Further, nothing alleged in Complainant's complaint would give rise to an additional duty on behalfofFec!Ex Office or Fec!Ex Express to inspect the shipment. Respondentasserts that at no time, did employees ofRespondent or Fec!Ex Office lmowingly, as defined in 49 U.S.C. 5123 (a) (1), accept an improperly prepared hazardous material shipment. For employees involved inthe acceptance ofthe shipment, see answer to Complainant's Interrogatory Number 6. 

### INTERROGATORYNO. 8:

**I~entifythe** names ofeach and every employee intbe Fec!Ex Office in Austin involved in this incident who received tbe following training: (a) General awareness/familiarization training; (b) Function-specific training; (c) Safety training; (d) Security awareness training; (e) In-depth security training; (f) Any other hazardous material training. 

### RESPONSE: Respondent incorporates each ofits General Objections above. Upon information and belief, the Fec!Ex Office in Austin is not a hazmat employer and none of its employees are hazmat employees as defined in 49 CRF 171.8, and therefore not subject to the training requirements ofthe Hazardous Materials Regulations. In response to Interrogatory 8 (f), botbFec!Ex Office employees Kaufman andMoore receivedDangerous Goods Assessmenttraining and Dangerous Goods Handling training. 

### INTERROGATORY NO. 9: Identify the dates tbe employees in the FedEx Office in Austin received training referred to in Interrogatory No. 6. 

### RESPONSE: Respondent incorporates each ofits General Objections above. Upon information andbelief, Kanfi:nan completedDangerous Goods Assessment onNovember 20, 2012 and December 5, 2013 and Dangerous Goods Handling on February 11, 2014; Moore completedDangerous Goods Assessment onNovember 17,2012 and January 15,2014 and Dangerous Goods Handling on February 20,2014. INTERROGATORY NO. 10: Ifyour responses to eachRequest for Admission served is not an unqualified admission, then state all facts which you base your response to each and every qualified admission ofComplainant's First Set ofRequests for Admission. RESPONSE: See response to Complainant's Interrogatory Number 5. INTERROGATORY NO. 11: State the names, addresses and telephone numbers of all persons who have knowledge ofthe facts whichyoubaseyourresponse to each and every qualified admission ofComplainant's First Set ofRequest to Admit Facts. RESPONSE: See response to Complainant's Interrogatory Number 2.

INTERROGATORY NO. 12: Identify 

### all documents and other tangible things that support your response to each Request for Admission in Complainant's First Set of Request to 

### AdmitFacts.

RESPONSE: Respondent incorporates each of its General Objections set forth above. Respondent objects to this request onthe grounds that it seeks information that is neither relevant
nor reasonably calculated to lead to the discovery ofrelevant evidence, it is overly broad, unduly burdensome, not sufficientlylimited inrelevanttype, time or geographic scope, andnotreasonably calculatedto leadto the discovery ofadmissible evidence. Respondentfurther objects to this request to the extent that it seeks the disclosure of information that is protected by the attorney-client privilege and/or the work product doctrine.

### Subject to and without waiving these objections, Respondent identifies as follows the responsive, non-privileged documents in its possession, custody, or control to the extent such documents exist and can be located in the exercise of reasonable diligence and without undue burden:

• Releasable portion ofF AA Investigative File, including butnot limited to:
o FAA Letter ofInvestigation dated January 17, 2014
o FeclEx Express Responseto Letter oflnvestigation, dated February 6, 2014, including attachment

o Statement ofF AA Special Agent Anthony Jimenez

o Package photographs, dated January 15,2014
o Copy ofthe shipper's shipping label, dated January 10,2014
o Package tracking printout for airway bill tracking number 797609866023

• 2014 FeclEx Express Service Guide, includingFedExExpress Terms and Conditions
• E-mail dated February I0, 2014 between Heidi McAuliffe ofthe American Coatings Association and David Littlejohn ofFeclEx Express regarding regulated vs. nonregulated paint

• E-mail exchange dated September 24, 2014 between Kim Shannon ofAkzoNobel Coatings and David Littlejohn of FeclEx Express regarding regulated vs. nonregulated paint

• FedEx Express Informal Conference Presentation

• Statements ofTaler Kaufinan and Darrel Moore, dated January 27,2014. Respondent further states that its fact investigation and trial preparation are ongoing, and discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or

### supplement this response if it identifies any additional documents that support Respondent's response to Complainant's Request to AdmitFacts.

INTERROGATORY NO. 13: State the name, address and telephone number of the person(s) who has each document or thing that supports your response to each Request for Admission in Complaint's First Set ofRequest to Admit Facts. RESPONSE: All documents referredto inComplainant's Interrogatory l3 are inpossession ofRespondent's Counsel. INTERROGATORYN0.14: Explainthe factual basis for each denial inFederal Express Corporation's Answer to Complainant's complaint. RESPONSE: See response to Interrogatory Number 5.

RESPONDENT'S RESPONSE TO COMPLAINANT'S FIRST REQUEST FORPRODUCTION OF DOCUMENTS

REQUEST TO PRODUCE NO. 1: Produce all documents supporting Respondent's
answers to Complainant's First Set ofinterrogatories. RESPONSE: Documents identifiedinresponse to Interrogatories Number 3 and 12 andnot already in

### the Complainant'spossession (e.g. FAA enforcement file) are produced atAttachment l, along with the FedEx Office employee's training certificates for the courses referenced in Respondent's response to Interrogatory 8. Respondent further states that its fact investigation and trial preparation are ongoing, and discoveryis notyet complete. Accordingly, Respondentreservesthe rightto amend and/or supplementthis response if itidentifies additional documents responsive to this request. 

### REQUEST TO PRODUCE NO.2: Produce all documents supporting Respondent's
answers to Complainant's First Set ofRequests for Admission. 

### RESPONSE: See documents identified and produced in response to Request to Produce Number 1. Respondentfurther states that its fact investigation andtrialpreparation are ongoing, and discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or supplement this response ifit identifies additional documents responsive to this request.


### REQUEST TO PRODUCE NO.3: Produce any expertreportintendedto beused attrial. Pursuantto Federal Rule ofCivil Procedure 26 (a)(B), the report shall containa complete statement ofall opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support forthe opinions; the qualifications ofthe witness, including a list ofallpublications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing ofany other cases inwhichthe witness has testified as an expert attrial orby deposition within the preceding four years. Any expert report in possession ofRespondent or its counsel and any documents containingtheinformationrequiredbyFederal Rule ofCivil Procedure 26 (a)(B), whetherinthe form ofa report, letter, or otherwise, shouldbeproducedinresponse to this demand whether or not it presently conforms to the Federal Rules cited above. 

### RESPONSE: Respondent has not yet identified any expert report, but will amend and/or supplement this response ifit identifies any expert.REQUEST TO PRODUCE NO.4: Produce a copy ofeachexhibitthat Respondentintends to introduce into evidence at trial. RESPONSE: Please see documents produced at Attachment 2. Respondent further states that its fact investigation and trial preparation are ongoing, and discovery is not yet complete. Accordingly, Respondentreserves therightto amend and/or supplementthis response ifitidentifies additional documents responsive to this request.

Respectfully submitted, Federal Express Corporation



### "':~~:~/· '



### .~;~-"-·""'~~· By: ,


### ~ **r-.:!:Y~·** ·Grevtdtko 

## 1 ( Attorney for Respondent 1700 Pennsylvania Ave., NW Suite 950 Washington, DC 20006 (202) 393-9285 greg.stofko@fedex.comCERTIFICATE OF SERVICE

I hereby certify that the foregoing document has been sent via Federal Express to the following:

Mr. James Archier, Attorney Federal Aviation Administration Office ofthe Regional Counsel 2601 Meacham Boulevard Fort Worth, Texas 76137

Dated this 29th day ofJanuary, 2015

.

By: 

# . **~_&zf;yt!ord** ,;y/ ,.·- i ·"' GregStofko / Atmmey for Respondent 1700 Pennsylvania Ave., NW Suite 950 Washington, DC 20006 (202) 393-9285 greg.stofko@fedex.comU.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE OF HEARINGS WASHINGTON, DC 

## H

In the Matter of Federal Express Corporation Respondent

THE HONORABLE RICHARD C. GOODWIN U.S. Administrative Law Judge FAA DOCKET No. NOT ASSIGNED FAA Case No. 2014SW700042 

### (Civil Penalty Action) FDMS No. FAA 2014-0864

COMPLAINANT'S RESPONSE TO RESPONDENT'S FIRST SET OF REQUESTS FOR ADMISSION NOW COMES, the Federal Aviation Administration (hereinafter "FAA") by and through the undersigned pursuant to Rule 13.220 of Subpart G-Rules of Practice in FAA Civil Penalty Actions, as guided by the applicable Federal Rules of Civil Procedure (F.R. Civ. P. 360 and hereby responds to Respondent, Federal Express Corporation's First Set of Requests for Admissions as follows: Request for Admission No. 1: The shipment with air waybill tracking number 797609866023 was not accompanied by the shipping papers required by the Department of Transportation Hazardous Materials Regulations (HMR)

. Admit. Request for Admission No. 2: The shipment with air waybill tracking number 797609866023 was not marked with the assigned UN number required by the HMR. Admit. Request for Admission No. 3: The shipment with air waybill tracking number 797609866023 was not labeled with the hazard label required by the HMR. Admit.Request for Admission No. 4: Numerous paints are offered for transportation, including transportation by air, that are not classified as hazardous materials under the HMR and, therefore, are not regulated by the HMR. Cannot Admit or Deny. The information known is insufficient to enable the FAA to admit or deny. A reasonable inquiry has been made. The FAA does not maintain data on the amount of paints offered for transportation, including transportation by air, that are not classified as hazardous materials under the HMR and therefore, are not regulated by the HMR. Request for Admission No. 5: The word "Paint" can refer to materials that are not classified as hazardous materials under the HMR and, therefore, are not regulated by the HMR. Admit. Request for Admission No. 6: Acceptance of a package marked with the word "Paint," but without any hazardous material shipping papers, marks, or labels, and not in UN specification packaging, is not a violation of the HMR. Denied. Request for Admission No. 7: Acceptance of a package marked with the word "Paint," but without any hazardous material shipping papers, marks,. or labels, and not in UN specification packaging, does not warrant a civil penalty at the top of range of the FAA's matrix for air carrier and other aircraft operator violations set for the in FAA Order 2150.38, Appendix C, Sanctions Guidance Hazardous Materials Enforcement. Objection. Complainant objects to this request on the basis of deliberative process. Request for Admission No. 8: commerce that is not regulated by regulated by the HMR. There is more paint in the HMR than there is paint
Cannot Admit or Deny. The information known is insufficient to enable the FAA to admit or deny. A reasonable inquiry has been made. The FAA does not maintain data on the exact amounts of paint that travels in commerce that is not regulated by the hazardous material regulations.

2Request for Admission No. 9: Orientation arrows commonly are marked on packages that contain materials that are not classified as hazardous materials under the HMR. Cannot Admit or Deny. The information known is insufficient to enable the FAA to admit or deny. A reasonable inquiry has been made. The FAA does not maintain data on the number of packages traveling in commerce with or without orientation arrows. Request for Admission No. 10: The words "This End Up" commonly are marked on packages that contain materials that are not classified as hazardous materials under the HMR. Cannot Admit or Deny. The information known is insufficient to enable the FAA to admit or deny. A reasonable inquiry has been made. The FAA does not maintain data on the number of packages traveling in commerce with the language "This End Up" that are not hazardous materials under the HMR. Request for Admission No. 11: The blue orientation arrows that are marked on one vertical side of the package with air waybill tracking number 797609866023 do not comply with the requirements of 49 C.F.R. § 172.312. Admit. Request for Admission No. 12: The air waybill with tracking number 797609866023 (IOP number 4 in the FAA's Enforcement Investigative Report) did not contain a notation "ADG," "IDG," or "ICE," in the lower right box. Admit. Request for Admission No. 13: During the period of January 1, 2009, through January 9, 2014, except for this matter, the FAA has not initiated and pursued civil penalty action against an air carrier for improperly accepting for transportation an undeclared shipment of paint in cases factually similar to the case in this proceeding. Objection. The FAA objects to this request on the basis of relevance. This request is not relevant because the FAA does not enforce cases against air carriers for accepting undeclared shipments.

3Respectfully submitted this 12ili day of March 2015.

ERIC E. ANDERSON Regional Counsel Southwest Region

By:

**~=-· ~~~~~------------** 

**~** es Archier, /. Agency Attorney / Federal Aviation Administration Office of the Regional Counsel Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76137 (817) 222-5074

4CERTIFICATE OF SERVICE Re: Federal Express Corporation, FAA Case No. 2014SW700042 I hereby certify that on March 12, 2015, I have sent via Federal Express an executed original and one copy of Complainant's Response to Respondent's First Set of Interrogatories, Requests For Admissions and Requests For Production of Documents addressed as follows to:

TEL: (202) 393-9285 FAX: (202) 628-0654 Mr. Greg G. Stofko Senior Attorney Regulatory Affairs Federal Express Corporation 1700 Pennsylvania Avenue, N.W. Suite 950 Washington, DC 20006

EMAIL: greg.stofko@fedex.com

TEL: (202) 496-7356 Allan H. Horowitz McKenna Long & Alridge LLP 1900 K Street, NW Washington DC 20006

EMAIL: ahorowitz@mckennalong.com

5ERIC E. ANDERSON Regional Counsel Southwest Region

o.f F

**~~'** By: 

### //f 

### .{.X'jll 4 ames Archier, Agency Attorney

ederal Aviation Administration • Office of the Regional Counsel Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76137 (817) 222-5074

6 Dated: March 12, 2015